The Basic Principles as Limits of Constitutional Revision in the Constitutional Jurisprudence and Doctrine in Europe

Abstract

Whenever is raised the question of a constitutional revision, the most frequent dilemma concerns the limits till which a certain parliamentarian majority, even a qualified one, can “dare” to approach. The expressed limits set in the revising process of rigid constitutions play a guaranteeing role based on the un-derogation of certain principles or institutes. The basic principles constitute the fundaments of a given constitutional order and their revision or modification is seen as un-proper, because it would have caused the transformation of this order. They constitute limits set to the revising process, expressed or even implicit ones. Furthermore, it would have been an unlawful revision, even if they would be modified conform to the procedures previewed in the constitution. This article gives examples on comparative basis of the contemporaneous constitutional doctrine and practice of several European countries, even in the absence of an expressed restriction, where certain basic principles were identified and determined (on case by case basis) as implicit and absolute limits set in the revising process of a rigid constitution. Their existence derives by the concept of the material constitution and the constitutional courts have an essential role in the determination of these limits and in the constitutional transformations. Related cases are found in the German, French, Italian and Spanish experience, and even in the new constitutional jurisprudence and doctrine of post-communist states of Eastern and Southeastern Europe.